riding a horse faster than an ordinance allowed, or because a boatman in a shell, or a student after a football game, may have been so insufficiently clad as to be guilty of indecent exposure, third persons are not justified in stoning him, as a violator of the law, nor would his wrong prevent his recovery from them.386 The fact that a person was drunk at the time of his injury will not prevent his recovery, unless his condition is connected as the cause of his suffering.387 Contributory negligence on the part of the plaintiff will bar his recovery of damages only when it is the legal cause of the harm.388 Thus, ordinarily, servants who violate the rules of their master, which are in force, cannot, in the absence of error in such rules or orders,389 recover against their master for consequent injuries, provided their disobedience is the proximate cause of the injury. But that plaintiff was plotting for a wager contrary to law did not prevent his recovery from defendant for willfully running down his sleigh. Welch v. Wesson, 6 Gray, 505, per Merrick, J. Nor would the fact that plaintiff was on the wrong side of the road justify defendant into driving into him. Damon v. Scituate, 119 Mass. 66-68; Spofford v. Harlow, 3 Allen, 176. And see Steele v. Burkhardt, 104 Mass. 59, contrasting Welch v. Wesson, supra, with Gregg v. Wyman, 4 Cush. 322, and Way v. Foster, 1 Allen, 408. And see McGrath v. Merwin, 112 Mass. 467; Woodman v. Hubbard, 25 N. H. 67; Wentworth v. Jefferson, 60 N. H. 158; Lyons v. Child, 61 N. H. 72. And it will presently be seen that even a convict can recover damages for a tort committed against him while he was under sentence.

386 Maguire v. Middlesex Ry. Co., 115 Mass. 239.

387 Ward v. Chicago, St. P., M. & O. Ry. Co., 85 Wis. 771, 55 N. W. 771; Williams v. Edmunds, 75 Mich. 92, 42 N. W. 534. So one may not willfully run another down, though he be trotting for money contrary to statute. Welch v. Wesson, 6 Gray, 505. And see Gates v. Burlington, C. R. & N. R. Co., 39 Iowa, 45; Norris v. Litchfield, 35 N. H. 271. In an action by a woman for damages for personal injuries, evidence that she committed adultery after the accident is not admissible for the purpose of disproving her statement as to the extent of her injuries. Joliet St. Ry. Co. v. Call, 143 Ill. 177, 32 N. E. 389. If plaintiff has been riding on a platform contrary to rules, but after he has alighted is injured by the backing up of a car, he can recover; he is guilty of no contributory wrong. Western Ry. of Alabama v. Mutch, 97 Ala. 194, 11 South. 894, followed. Gadsden & A. U. Ry. Co. v. Causler, 97 Ala. 235, 12 South. 439. And, further, see Illinois Cent. R. Co. v. Godfrey, 71 Ill. 500; Bullard v. Mulligan, 69 Iowa, 416, 29 N. W. 404; Carter v. Railway Co., 98 Ind. 552. 388 Post, p. 971, "Contributory Negligence."

389 Enright v. Toledo, A. A. & N. M. Ry. Co., 93 Mich. 409, 53 N. W. 536; Greenway v. Conroy, 160 Pa. St. 185, 28 Atl. 692; Chicago, M. & St. P. Ry.

the mere violation of a rule by a servant does not constitute contributory negligence, if the injury would have happened just the same whether the servant was negligent or not.390 But wherever one has violated the law, and such violation contributes directly or approximately to his alleged injury, he has never been permitted to recover for it.391 Such an unlawful act is not merely evidence of contributory negligence, but is a conclusive bar to recovery. A plaintiff's violation of law, therefore, should not be discussed in connection with the exercise of due care, but treated from the point of view of connection as cause.3 392

As to how far what Mr. Bishop felicitously calls "collateral wickedness" will prevent one who travels on Sunday, not for "works of necessity or charity," from recovering for wrong done him, is much in dispute. On the one hand, it is held that the law will not lend its

Co. v. Ross, 112 U. S. 377, 5 Sup. Ct. 184; Northern Pac. R. Co. v. Cavanaugh, 2 C. C. A. 358, 51 Fed. 517.

390 White v. Railway Co. (Miss.) 16 South. 248; Horan v. Railway Co. (Iowa) 56 N. W. 507; Louisville & N. R. Co. v. Ward, 10 C. C. A. 166, 61 Fed. 927; Richmond & D. R. Co. v. Brown, 89 Va. 749, 17 S. E. 132; Louisville & N. R. Co. v. Pearson, 97 Ala. 211, 12 South. 176.

391 "It will defeat an action for tort if the injured party, in making his case, must show that he was at the time of the injury violating a positive statute, or committing malum in se, provided such violation of law or crime contributed to the injury." Taft, C. J., in Louisville & N. R. Co. v. East Tennessee, V. & G. Ry. Co., 9 C. C. A. 314, 60 Fed. 993-998.

392 Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N. E. 555, where plaintiff recovered for injuries caused by defendant's careless driving while plaintiff was sitting in his cab. The evidence tended to show that plaintiff had not placed his horse and vehicle parallel with the sidewalk, as required by ordinance, so as to avoid obstructing the street. Cf. Neanow v. Uttech, 46 Wis. 581, 1 N. W. 221; Steele v. Burkhardt, 104 Mass. 59. Et vide post, p. 877, "Negligence," "Law of the Road," "Statutory Negligence." The confusion in the Massachusetts cases, it is said, may be reconciled by saying that a concurring violation of the Sunday laws is in itself a contributory cause, while the violation of any other law is not. Mr. Hallam, in 39 Cent. Law J. 279 et seq. An action for loss of goods by negligence against a common carrier may be maintained although the bill of lading involved a rebate, contrary to the provisions of the interstate commerce act. Merchants' Cotton Press & Storage Co. v. Insurance Co. of North America, 151 U. S. 368, 14 Sup. Ct. 367. And see Insurance Cos. v. Carriers' Cos., 91 Tenn. 537, 19 S. W. 755.

LAW OF TORTS-13

assistance to one violating it, that failure to comply with statutory requirements is a species of negligence, and that, therefore, the law will deny redress to any one engaged in such violation.393 On the other hand, it is urged, with apparent weight of reason and authority, that the wrong of a railroad, in not furnishing safe machinery, proper servants, and the like, or the wrong of a municipality, in neglecting to repair its streets, being disconnected from the wrong of the person who may elect to travel on Sunday, is the juridical cause of the injury, and that denial of the right to recover would encourage negligence and multiply accidents; 394 that mere proximity in time is no part of the definition of "proximate cause"; and that the wrong is to the state, without breach of any duty to the injured plaintiff.395

393 Bucher v. Fitzburg R. Co., 131 Mass. 156. And see Davis v. Somerville, 128 Mass. 594, Bosworth v. Swansy, 10 Metc. (Mass.) 363; Jones v. Andover, 10 Allen, 18; Stanton v. Metropolitan R. Co., 14 Allen, 485; McGrath v. Merwin, 112 Mass. 467; Connolly v. Boston, 117 Mass. 64; Smith v. Boston & M. R. Co., 120 Mass. 490; Day v. Highland St. Ry. Co., 135 Mass. 113. The Massachusetts rule was changed by St. 1884, c. 37. This act does not, however, apply to injuries occurring before its passage. Read v. Boston & A. R. Co., 140 Mass. 199, 4 N. E. 227. Cf. reasoning of Massachusetts cases with that found in Olesen v. City of Plattsmouth, 35 Neb. 153, 52 N. W. 848; Cratty v. Bangor, 57 Me. 423; Johnson v. Irasburgh, 47 Vt. 28; Holcomb v. Danby, 51 Vt. 428.

894 Sutton v. Town of Wauwatosa, 29 Wis. 21; Bigelow, Cas. Torts, 711; McArthur v. Green Bay & Mississippi Canal Co., 34 Wis. 139. And see Knowlton v. Milwaukee City Ry., 59 Wis. 278, 18 N. W. 17; Platz v. Cohoes, 89 N. Y. 219; Opsahl v. Judd, 30 Minn. 126, 14 N. W. 575; Piollet v. Simmers, 106 Pa. St. 95; Schmid v. Humphrey, 48 Iowa, 652 (reviewing cases); Tingle v. Chicago, B. & Q. Ry., 60 Iowa, 333, 14 N. W. 320; Kerwhaker v. Cleveland, C. & C. R., 3 Ohio St. 172; Philadelphia, W. & B. Ry. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. (U. S.) 209; Baldwin v. Barney, 12 R. I. 392.

295 Sutton v. Town of Wauwatosa, supra; 1 Shear. & R. Neg. 26. Et vide Carroll v. Staten Island R. Co., 58 N. Y. 126; Platz v. Cohoes, 89 N. Y. 219: Johnson v. Missouri Pac. Ry. Co., 18 Neb. 690, 26 N. W. 347; Louisville, N. A. & C. Ry. Co. v. Frawley, 110 Ind. 18, 9 N. E. 594; Baldwin v. Barney, 12 R. I. 392. Cf. Mohney v. Cook, 26 Pa. St. 342; Rauch v. Lloyd, 31 Pa. St. 358; Piollet v. Simmers, 106 Pa. St. 95. On the same principle, it is no defense to an action for negligent shooting that at the time of the injury plaintiff and defendant were unlawfully engaged in shooting on the Sabbath. Gross T. Miller (Iowa) 61 N. W. 385.

Wanton Injury.

The mere fact that a person has violated the law may not prevent him from recovering for a subsequent wrong done him,396 but he does not stand on the same footing as an innocent person. Thus, no duty of diligence is owed to a trespasser, intruder, mere volunteer, or bare licensee. Such a person cannot recover under circumstances which would entitle a person lawfully in the same position to maintain an action for damages suffered.397 Therefore, if a trespassing person, of full age, a child,398 or an animal runs into a barrier, excavation, or other source of danger, there is no actionable wrong. The owner of the premises is not bound to provide safeguards.399

Merely that a man is a trespasser does not justify another in reck

396 Ante, pp. 192-194, "Connection as Cause." And see Fletcher v. Cole, 26 Vt. 170. See Gray v. Ayres, 7 Dana (Ky.) 375; Love v. Moynehan, 16 Ill. 277; Ogden v. Claycomb, 52 Ill. 365; Gizler v. Witzel, 82 Ill. 392; Jones v. Gale, 22 Mo. App. 637; Phillips v. Kelly, 29 Ala. 628. A convict may recover for injuries inflicted on him. See Chattahooche Brick Co. v. Braswell (Ga.) 18 S. E. 1015. Cf. O'Hare v. Jones (Mass.) 37 N. E. 371.

397 Nave v. Flack, 90 Ind. 205; Philadelphia & R. R. Co. v. Hummell, 44 Pa. St. 375 (cf. Brown v. Hannibal & St. J. R. Co., 50 Mo. 461); Rosenbaum v. St. Paul & D. R. Co., 38 Minn. 173, 36 N. W. 447; Tonawanda R. Co. v. Munger, 49 Am. Dec. 239; McVeety v. St. Paul, M. & M. Ry. Co., 45 Minn. 268, 47 N. W. 809; Kirtley v. Railway Co., 65 Fed. 386; Lary v. Cleveland, C., C. & I. R. Co., 78 Ind. 323.

398 Rodgers v. Lees, 140 Pa. St. 475, 21 Atl. 399; Mitchell v. New York, L. E. & W. R. Co., 146 U. S. 513, 13 Sup. Ct. 259; post, p. 890, "Negligence"; Hedin v. City & Suburban Ry. Co. (Or.) 37 Pac. 540. The rule requiring locomotive engineers and street-car drivers to exercise vigilance in looking out for dangers to passengers and persons on the track, and to use reasonable diligence to prevent injury to a person after his peril is discovered, has no application to a case where decedent not only assumed the attitude of a trespasser, but illegally interfered with the movement of the car by jumping on a moving car and whipping mules with driver's whip, and thereby caused his own death. Taylor's Adm'r v. South Covington & C. St. Ry. Co. (Ky.) 20 S. W. 275.

399 Sweeny v. Old Colony & N. R. Co., 10 Allen, 368; Maynard v. Boston & M. R. Co., 115 Mass. 458; Trask v. Shotwell, 41 Minn. 66, 42 N. W. 699; Blatt v. McBarron, 161 Mass. 21, 36 N. E. 468 (where the trespass was committed by mistake); Mergenthaler v. Kirby (Md.) 28 Atl. 1065 (where a boy stealing lead was scalded by escaping steam); Augusta R. Co. v. Andrews, 89 Ga. 653, 16 S. E. 203, where the damage was caused by electricity. So trespassers on cars and engines are not ordinarily entitled to the exercise of

lessly or wantonly doing damage to him.400 The rule has been stated (perhaps too broadly), "A trespasser is liable to an action for an injury he does, but he does not forfeit his right of action for an injury sustained." 401 Therefore, if a claimant of real estate, out of possession, resorts to force and violence amounting to a breach of peace, to obtain possession from another claimant, in peaceable possession, and personal injury arises thereupon to the latter, the former is liable in damages for the injury, without regard to the legal title, or right of possession.102 In a similar manner, a trespasser may recover for damages done him by a spring gun.403 On the same principle, where one allowed her horses to run at large, in violation of a city ordinance, and they strayed upon a railroad track, she could not recover for injuries done them by a passing train without showing that the railroad company's employés were not only negligent, but guilty of reckless and wanton misconduct, in

diligence to avoid harm. Andrews v. Ft. Worth & D. C. R. Co. (Tex. Civ. App.) 25 S. W. 1040; Vertrees v. Newport News & M. V. R. Co. (Ky.) 25 S. W. 1. So as to trespassing animals. Knight v. Albert, 6 Pa. St. 472. Et vide Bush v. Brainard, 1 Cow. 78; Hess v. Lapton, 7 Ohio, 216. But see Barnes v. Ward, 9 C. B. 392-420, approved by Lynch v. Nurdin, 1 Q. B. 29. Compare Howland v. Vincent, 10 Metc. (Mass.) 371, with Birge v. Gardner, 19 Conn. 507. 400 Planz v. Boston & A. R. Co., 157 Mass. 377, 32 N. E. 356; Phillips v. Wilpers, 2 Lans. (N. Y.) 389. "Since the business of the courts is to enforce obedience to the law they cannot lawfully assist a suitor in any effort to break it. At the same time, a man's being a sinner, whether against the divine law or the human, does not authorize another sinner to maltreat him; so that in an action of torts a bad man stands on the same footing as a good But neither can have judicial assistance in breaking the law, or compensation for having broken it, or a refund of what he has expended in its breach." Bish. Noncont. Law, § 54.

one.

401 Barnes v. Ward, 9 C. B. 392; post, p. 890, "Negligence."

402 Denver & R. G. Ry. Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. 1286, approved Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101-107, 13 Sup. Ct. 261; Ogden v. Claycomb, 52 Ill. 365; Trogden v. Henn, 85 Ill. 237.

403 Bird v. Holbrook, 4 Bing. 628; Hooker v. Miller, 37 Iowa, 613. And see Aldrich v. Wright, 53 N. H. 398; Churchill v. Hulbert, 110 Mass. 42; post, p. 890, "Negligence." Generally, as to the right to protect private groundsagainst trespass by means of spring guns and land traps, see article in 28 Ir. Law T. 277.